1975 (4) TMI 133 - SC - Indian Laws

Housing Society which allotment is coupled with the right to transfer their shares of the Society and interest in the said flat which is the property of the Society.

Issues Involved:
1. Whether a flat in a tenant co-partnership housing society under the Maharashtra Cooperative Societies Act, 1960, is liable to attachment and sale in execution of a decree against a member.
2. The applicability of Section 60 of the Civil Procedure Code to the attachment of such property.
3. The interpretation of relevant provisions of the Maharashtra Cooperative Societies Act, 1960, Rules, and Bye-laws of the Society concerning the transferability and attachability of the property.

Detailed Analysis:

1. Liability of Flat to Attachment and Sale:
The primary issue is whether a flat in a tenant co-partnership housing society under the Maharashtra Cooperative Societies Act, 1960, can be attached and sold in execution of a decree against a member. The appellant, a decree-holder, obtained a money decree against the respondent and attached flat No. 9 of Paresh Cooperative Housing Society Limited. The judgment-debtor's brother challenged the execution, claiming the flat belonged to him and the judgment-debtor's wife. However, the chamber summons was dismissed, and the judgment-debtor later filed a suit to set aside the decree, which is pending. The flat was auctioned but not yet confirmed. The judgment-debtor then filed another chamber summons, arguing that the flat was not liable to attachment and sale under Section 60 of the Civil Procedure Code. The City Civil Court dismissed the chamber summons, but the High Court allowed it, setting aside the attachment and sale. The appeal to the Supreme Court questions this decision.

2. Applicability of Section 60, Civil Procedure Code:
The respondent contended that under Section 60 of the Civil Procedure Code, he had no saleable interest in the flat, making it non-attachable. However, the Court noted that Section 60 reaches a benami holding, and the respondent's right to occupy the flat is considered his property. The Court emphasized that Section 60 is not exhaustive and includes any saleable property, whether held in the name of the judgment-debtor or by another person on his behalf. Thus, the right to occupy the flat is attachable and saleable.

3. Interpretation of Relevant Provisions:
The Court examined the Maharashtra Cooperative Societies Act, 1960, the Rules, and the Bye-laws of the Society. Section 29(2) of the Act allows the transfer of a member's share or interest in the property, subject to certain conditions. Section 31 prohibits the attachment or sale of a member's share or interest in the capital of a society but does not extend to the right to occupy a flat. Section 47(1)(b) recognizes the member's interest in the immovable property of the society. The Bye-laws also permit the transfer of shares and the right to occupy the flat, provided the transferee becomes a member of the society. The Court concluded that there is no absolute prohibition against transferring the right to occupy the flat or the shares, and the attachment and sale in execution of the decree are valid under the law.

Conclusion:
The Supreme Court held that the right to occupy a flat in a tenant co-partnership housing society is a species of property that is attachable and saleable in execution of a decree. The judgment of the High Court was set aside, and the judgment-debtor's chamber summons dated March 28, 1972, was dismissed. The appeal was allowed, with no order as to costs except that the court fees would be payable by the appellant. The Court appreciated the assistance rendered by the amicus curiae and the counsel for the appellant.

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